Find a Lawyer

First Rent Appeal No.912 of 1981, heard on 28th April, 1985.

--S. 21--Rent agreement--Parties cannot contract out of provisions of law--Parties agreeing to a clause in rent deed that ejectment could arise only when there was continuous default in payment of rent for three months--Agreement expiring arid no fresh agreement executed- Ejectment application, held, could not be dismissed on basis of agreement as there could be no estoppel against law--Question of personal requirement of landlord would be determined in accordance with provisions of rent law--Order of Rent Controller that eviction could not be sought on personal ground in view of agreement set aside.

---Ss. 13 & 21--Ejectment--Default in payment of rent--Rent deed expiring--Tenant paying rent within statutory period--Default, held, not established.

Muhammad Yousaf v. Abdullah P L D 1980 S C 298ref.

---Ss. 13 & 21--Ejectment application-Bona fide personal requirement- Both landlady and her husband appearing in witness-box and stating about their bona fide requirement of disputed premises--Children of landlady grown up and eldest son getting married--Accommodation in possession of landlady consisting of two rooms only--No evidence produced by tenant to prove his contention that his eviction was sought mala fide only to extort more money or to get increase in rent--Order of eviction passed against tenant in circumstances.

---Ss. 13 & 21--Ejectment--Personal ground--Conversion of four rooms into two rooms by landlord for convenience of family, held, no clog on his right to seek eviction on personal ground.

S.A. Kirmani for Appellant.

Athar Hassan Siddiqui for Respondent.

Date of hearing: 28th April, 1985.

The facts in brief are that the appellant filed ejectement application against the respondent in the Court of Controller on the ground of default in payment of rent for five months and for the personal bona fide use of herself and for her children and one son namely Muhammad Ismail, who requires accommodation for marriage. The written statement was filed by the respondent and the averments were denied. The learned Rent Controller dismissed the application mainly relying on the written agreement between the parties.

2. I have heard the learned counsel for the parties. It is observed by the Rent Controller that the respondent tenant had deposited rent for the months of October, November and December, 1977 on 19-12-1977 rent for January, 1978 on 5-2-1978 and the rent for the month of February on 13-3-1978. Thus, the rent for the alleged defaulted months had been paid within grace period and within time accordance with the rent deed between the parties. According to is clause in the rent deed right of ejectment would arise only when there is continuous default in payment of rent for three months. It was, therefore, held by the Rent Controller that the default in the payment of rent against the opponent is from October, 1977. If the grace period of 3 months is allowed to the opponent then the applicant will get the right of ejectment against the opponent in January, 1978. Similarly the Rent Controller has further observed that according to the rent agreement the applicant cannot claim ejectment on the ground of personal bona fide use or for the use of her children. The finding of the learned Rent Controller on both these issues is erroneous. The parties cannot contract out of the provisions of law. The agreement had expired in the year 1974 and thereafter no fresh agreement had been executed. The application cannot be dismissed on the basis of agreement which not only had expired butt there cannot be any estoppel against the law and the default and' personal requirement of a landlord are to be determined in accordance) with the provisions of Sind Rented Premises Ordinance, 1979.

Under section 15(2)(ii) if the tenant has failed to pay rent within 15 days after the expiry of period fixed by mutual agreement between the tenant and landlord for payment of rent or in the absence of such agreement, within sixty days after the rent has become due for payment. In the instant case as rent deed had already expired, therefore, the cause of action would arise after the expiry of 60 days. In the instant case the rent has been paid before the expiry of 60 days. In this behalf the observations made in Muhammad Yousuf v Abdullah P L D 1980 S C 298 are relevant, wherein it has been held that rights and liabilities of the parties being exclusively governed by the Rent Restriction Ordinance the question of amount of rent due to be determined in accordance with the provisions of Urban Rent Restriction Ordinance, (in the present case under Sind Rented Premises Ordinance, 1979) and in the absence of any agreement the tenant has to pay the rent within 60 days from the period from which the rent became payable. The default hag not green established.

3.On the point of personal bona fide use, the family of the appellant consists of 8 children besides husband and Wife. One daughter is married and live with her husband so nine persons are living in two rooms. Learned counsel for the respondent has laid much stress that the appellant was occupying four rooms but these roams have been converted into two rooms. This shows the male fide of the appellant. Counsel for the appellant has stated that the conversion has been made such prior to the filing of the eviction application as the size of the rooms was small. There is no evidence as to when the four rooms had been converted into two. Be as it may, the Conversion of four rooms into two rooms for the convenience of the family is not a clog on the right of a landlady to seek eviction on the personal requirement. The landlady and her husband appeared as witnesses and both have stated abort their bona fide requirement. Their children are grown up and the eldest son was going to marry. Learned counsel for the appellant has stated that the son has since been married. The present accommoda tion in the possession of the appellant consist of two rooms only. There is general allegation made by the respondent that the premises are not required for bona fide use and an application for eviction has been filed only to extort more money from the opponent. But there is no evidence to support this, contention. There is nothing on the record which substantiates the plea of the respondent that increase in the rent was demanded by the landlady. The statements of the landlady and her husband fully support their bona fide. The finding of the Rent Controller is stated above that eviction cannot be sought on the personal ground in view of the agreement cannot be accepted as it against provisions of law. The finding of the Rent Controller on this issue is, therefore, set aside.

The appeal, is allowed and consequently the order of eviction is passed against 'the respondent. She should deliver the vacant possession of the premises in dispute for which six months time is allowed. There will be no order as to costs.

M. Y.H.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.